What is a Child Arrangements Order and when might I need one?

If your relationship ends and you have children, you will need to consider where the children will live and how much time they spend with each of you. This is called making child arrangements.

Child arrangements can usually be agreed directly and informally, but it can help to write down what has been agreed or create a parenting plan. If arrangements cannot be agreed or are not working, mediation may help provide a forum to discuss and agree matters. Typically, matters can be resolved more amicably and cost-effectively in mediation.

Where, however, there remains a dispute, it may be necessary to make an application to the Court for a Child Arrangements Order. In most cases, you must first show that you have attended an initial mediation meeting before applying to a court, although there are certain exemptions such as cases where there has been domestic abuse or social services are involved.

What is a Child Arrangements Order?

A Child Arrangements Order sets out who has responsibility for the care of a child, including who they live with and how often they will spend time with both parents. ‘Lives with’ and ‘spends time with’ have replaced previously used terminology relating to ‘custody’ and ‘residence’. Where an order sets out that a child will spend time with a parent they do not live with, the parent whom they do live with must facilitate that contact happening during the periods specified in the Order.

A Child Arrangements Order can provide for parents to have ‘shared care’ for the child. Shared care does not necessarily mean that the child will spend exactly equal time with each parent, but will live with both parents for defined periods of time.

Who can apply for a Child Arrangements Order?

A Child Arrangements Order is most commonly sought by the parent of a child. However, it is possible for any person with parental responsibility to apply for a Child Arrangements Order, including for example a grandparent, guardian or someone who the child has lived with for three or more years (subject to permission being given by the court in some instances).

What factors will the court consider when making a Child Arrangements Order?

The Court’s paramount consideration will always be the welfare of the child. Section 1 of the Children Act 1989 sets out a ‘welfare checklist’ to be considered, which includes the following guiding principles:

• The wishes and feelings of the child concerned
• Their physical, emotional and educational needs
• How any change to the current arrangements may impact the child
• Their age, sex, background and any other relevant characteristics
• Any harm that they have suffered or are at risk of suffering
• The capability of each parent.

Why might child arrangements change?

When a Child Arrangements Order is made, this will be made on the basis of what the court considers to be the child’s best interests at this time. The court has the power to vary or discharge an Order where circumstances have changed or the child’s interests require it.

Parents may wish to change the child arrangements as their circumstances change or the child gets older. For instance, a parent may be moving home or have new work commitments that now clash with the existing arrangements. Alternatively, a teenager may wish to exercise greater autonomy over their day to day whereabouts and activities than a younger child.

It is possible for parents to change the child arrangements without applying to the court if they are both in agreement. It is important to note, however, that neither parent will automatically be able to seek to enforce these alternative arrangements in the court at a later date as they will not be legally binding, as they have not been approved by the court and the existing order varied.

If parties intend these changes to be legally binding, it is possible to instruct a solicitor to draft a ‘consent order’ to cover the new arrangement and ask the court to approve this variation to the original Child Arrangements Order.

If parties are not in agreement regarding the changes, it will be necessary for the party proposing the change to make an application to the court to vary the terms of the Child Arrangements Order in place. Again, the court will need to consider whether or not any changes are in the best interests of the child.

If you have any questions about Child Arrangements Orders or disputes involving children, please contact a member of the family team at Thomson Snell and Passmore LLP by telephone on 01892 510000 or info@ts-p.co.uk.